KentuckyWired: Still suffering from the secrecy virus

COG LOGOThe Bluegrass Institute has made no secret of its opposition to KentuckyWired, the state’s $340M broadband initiative, describing it as “a big government boondoggle” and examining the “[v]irus of secrecy infect[ing]” the project in an October 2015 article.

It should have come as no surprise to me when I was unable to locate the agency’s offices so that I could submit an open records request.

I was asked to obtain a copy of the regular meeting schedule for the Kentucky Communications Network Authority, the board that oversees KentuckyWired. The schedule was not posted on the agency’s website – not a legal requirement but a common practice among public agencies —  and the only available telephone number sent me directly to voicemail.

Several telephone calls to the Governor’s Office, to which KCNA is administratively attached, yielded no results. Otherwise helpful employees had never heard of the authority and ultimately provided me with the same telephone number I had already unsuccessfully called.

Later in the day, I reached an employee who provided me with the agency’s address: 209 St. Clair Street, Fourth Floor.

My reasons for hand delivering the open records request were twofold. First, I had wasted so much time attempting to locate the agency’s address, I missed the afternoon mail. And second, I wanted to determine if the agency had complied with KRS 61.876 by posting rules governing access to its records in a prominent location accessible to the public.

These statutorily required rules are the “how to’s” for citizens wishing to access the agency’s records by means of an open records request. KCNA’s rules were nowhere to be seen. Is this a violation of the open records law? You bet.

Several hours after I delivered my request, I received a telephone call from agency counsel and a subsequent email.

Notwithstanding the legal requirement that the “schedule of regular meetings. . .be made available to the public,” he indicated that  “at the April 2015 [sic] meeting the KCNA board set its regular meetings on a quarterly basis:  March, June, September and December.   The meetings will be scheduled for the 3rd Thursday of each month.  The Board’s next meeting is June 15 at 1 pm in Room 110 of the Capital.  Since the board set the regular meetings at the April meeting, I don’t have a document to provide to you, but I wanted to give you the information.”

I asked that he specify the actual dates, times and locations, and he responded, “Based on this schedule, the meetings will be September 21, 2017, December 21, 2017 and March 15, 2018, all to be held at 1 pm in Room 110 of the Capital [sic], contingent upon schedule and room availability.”

I reminded agency counsel that “the regular meeting schedule should fix the date, time and place for regular meetings,” but was minimally satisfied with his response.

That is until I received a follow-up email from agency counsel on June 15. He advised, “I wanted to let you know that at today’s meeting the Board changed the December meeting date.  It is now Dec. 14, 2017 at 1:00 pm in Room 110.”

By rescheduling the December 21 regular meeting to December 14, KCNA obligated itself to treat that meeting as a special meeting and to comply with statutory notice requirements. It is well established that a rescheduled regular meeting is a special meeting. See, for example, 92-OMD-1473, recognizing that “when the public agency deviates from its regular meeting schedule and reschedules that regular meeting, the rescheduled meeting becomes a special meeting.”

“The express purpose of the Open Meetings Act” —  Kentucky’s highest court has observed — “is to maximize notice of public meetings and actions.  The failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.” Both the legislature in enacting the law and the courts in construing it have demonstrated a commitment to open government openly arrived at.

Nevertheless, these events confirm that KCNA’s regular meeting schedule is conditioned “upon schedule and room availability” and therefore not fixed as to date, time and place. It provides inadequate notice to the public and no real certainty as to future regular meetings.

KCNA is far too casual about what constitutes a formally adopted regular meeting schedule. How many more changes will the board make and will these changes be reflected in its illusory regular meeting schedule?

How better to evade oversight than to conduct meetings without adequate notice to the public. Apparently, KCNA is still infected with the virus of secrecy that afflicted it in 2015.

Amye Bensenhaver, one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, is director of the Bluegrass Institute’s Center for Open Government.

Rubber stamping public agencies’ denials of records requests

COG2The brutal murder of a nine year old girl, Amy Dye, at the hands of her adopted brother in 2011 prompted a local newspaper, The Todd County Standard, to undertake an investigation into the efforts of the Cabinet for Health and Family Services to address multiple reports from school officials and teachers about the child’s welfare.

Using the open records law, the newspaper’s editor, Ryan Craig, asked the Cabinet for records in its custody relating to the “discharge of its duties concerning. . .[the] deceased nine-year-old child.” Ignoring the three-day statutory deadline for agency response, the Cabinet seriously compounded this procedural violation by advising the newspaper that it “did not possess any records responsive to the request.” The Todd County Standard subsequently appealed the Cabinet’s denial of Mr. Craig’s request to the Attorney General.

On appeal, the Cabinet continued to insist that it possessed no responsive records. Because the Cabinet did not address the newspaper’s assertion that the child “had previously been under the Cabinet’s care,” the Attorney General’s staff exercised its authority under KRS 61.880(2)(c) to “request additional documentation from the agency for substantiation” of its position that it possessed no responsive records relating to Amy Dye.

The Cabinet flatly refused to respond to the Attorney General’s request for additional documentation.  In 11-ORD-074,  the attorney general determined that the Cabinet violated the open records law both procedurally, by failing to respond to Mr. Craig’s request within three business days, and substantively, by failing to prove that a denial of the request based on the nonexistence of responsive records was justified.

Later events confirmed the Cabinet’s duplicity in denying the existence of responsive records, its flagrant violation of the open records law, and ultimately its failure to intervene to protect Amy Dye in the face of numerous reports of abuse and neglect from school officials and others. The Cabinet prioritized the protection of its own image over the need to openly address this tragedy while demonstrating an utter disregard for the public’s right to know.

On May 15, the Bluegrass Institute commended Attorney General Andy Beshear for his decision to intervene in a number of open records cases pending in circuit courts across the state to defend his staff’s right to employ KRS 61.880(2)(c) to prove or disprove the truthfulness of the agency’s denials of records requests. As we observed, “Without this essential tool, the attorney general cannot conduct a meaningful review of the issues presented to him for resolution, which are part of the statutory duties of his office. He becomes a mere “rubber stamp” for agencies disinclined to expose their conduct to the light of public scrutiny.”

We were therefore dismayed to see that his staff failed to employ KRS 61.880(2)(c) in a number of recent appeals, essentially “rubber stamping” agencies’ denials based on the nonexistence of responsive records notwithstanding circumstances that called the agencies’ denials into question.

In an appeal involving the Boyle County Sheriff, 17-ORD-088, the requester asked for “the record of any phone calls made from the Sheriff’s Office to any division of the KSP” and any calls from KSP to the sheriff’s office from July 14 to September 1, 2016. The sheriff denied that he “ke[pt], collect[ed], or maintain[ed] any phone records” and referred the requester to the local 911 center.

Note, the sheriff did not deny that the calls took place. Nor did he indicate why official calls between two law enforcement agencies, if indeed the calls took place, would be routed through a dedicated 911 telephone line. Finally, he did not state that his office has no phone lines of its own for the conduct of routine and nonemergency agency business.

These are the lines of inquiry the AG’s staff should have pursued through requests for additional documentation to substantiate the sheriff’s denial of the request under KRS 61.880(2)(c). Additionally, the AG’s staff should have asked the sheriff if he was aware of his legal obligation to retain phone logs and billing records under the General Schedule for Local Government, at series L4969 “Telephone record/log” (one year), or series L5011 “Accounts Payable” (three years).

It is unfortunate that the Office of the Attorney General appreciates the value of KRS 61.880(2)(c) enough to defend it in the courts but not enough to actually use it in the discharge of the office’s statutorily assigned duties. Our question for him is, “Why bother?”BIPPS Logo_pick

Amye Bensenhaver, one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, is director of the Bluegrass Institute’s Center for Open Government.

Bensenhaver’s work recognized

BIPPS Logo_pickToday, the State Journal recognized Amye Bensenhaver’s work on government transparency. In an editorial article, the Journal commended the director of the Center for Open Government on her proposals for “much-needed modernization and strengthening of sunshine laws.”

Praising Bensenhaver, the State Journal affirmed her credibility: “No one in Kentucky is more thoroughly versed on the details of open-meetings and open-records laws — or more qualified to suggest ways to improve them.” Bensenhaver’s decades in the Attorney General’s office give her deep knowledge.

Reforming Kentucky’s sunshine laws would benefit all citizens within the Commonwealth, not just the media. “Any citizen has the same access — or lack thereof — to government business that we have. Sunshine laws protect us all.” Reporters and editors utilize records to keep readers informed, but they do not have any special status for obtaining information.

The Bluegrass Institute is proud to work with Amye Bensenhaver on this critical area.

UofL Foundation audit exposes willful obstruction of open records act

BIPPS Logo_pickShocking revelations abound in the forensic audit of the University of Louisville Foundation, but none more shocking to proponents of open government than the revelation that the foundation conspired with its attorneys to conceal and destroy records that exposed financial abuses, brazenly documenting these activities in an electronic “paper trail.”

The audit describes a lack of transparency in the foundation’s deferred compensation plan that netted a dozen high-ranking administrators $20M over a period of years.

The audit quotes a 2008 email in which President James Ramsey’s chief of staff, Kathleen Smith, requested foundation counsel’s guidance  to “keep these [deferred compensation] participation agreements from being subject to ORR [open records requests]” based on her belief that “Dr. Ramsey does not want any of these to end up in the hands of the C-J [Courier-Journal].”

This conduct continued in 2012 when, the audit reveals, Smith emailed the university provost, who had expressed concerns about “overcompensation,” reassuring her that “foundation retirement contracts” were “deliberately ambiguous because ambiguity is in the employee’s favor.”

And in a 2014 email quoted in the audit, agency counsel advised Ms. Smith by email that he “picked DCPA, LLC for deferred compensation program administrator,” to replace its former designation. She responded that whatever designation was selected, it “needs to be difficult to figure out for media.”

In the face of a 2003 Court of Appeals ruling – later affirmed by the Supreme Court — that the foundation was “established, created, and controlled by a public agency,” namely the University of Louisville, and therefore itself a public agency subject to the open records law, officials engaged in a course of conduct aimed at evading public scrutiny through malicious evasion, obfuscation and secreting away of public records on non-foundation premises.

Worse still, the audit’s general findings indicate that UofL and the foundation “did not preserve all available computers and mobile devices utilized” by certain employees whose email accounts were placed on “litigation hold” from any records destruction. For example, the audit notes, UofL “erased and repurposed Dr. Ramsey’s hard drive” before the auditor was hired.

Additional instances of records destruction are recounted in newspaper accounts.

On the spectrum of abuses committed by UofL and the foundation that the audit exposed, contempt for the laws governing records management and inspection by high-ranking officials may be found at the lower end.

But the records tell the story of the abuse. They ensure accurate reporting by the media, including the Kentucky Center for Investigative Reporting. Over a period of years, KYCIR pursued multiple appeals to the attorney general’s office involving the UofL Foundation and fought for access to foundation records in the courts not once but twice.

The actions of UofL and its foundation are disheartening for those who hold fast to the belief – eloquently expressed by the Court of Appeals — that the “Open Records Act is neither an ideal nor a suggestion.  It is the law. Rigid adherence to this stark principle is the lifeblood of the law which rightly favors disclosure, fosters transparency, and secures the public trust.” The commitment of investigative reporters –like the KYCIR staff — to expose the agencies’ abuses is reassuring.

What education accountability can (and cannot) do, Part II

Once again, Prof. Gary Houchens, a Bluegrass Institute Scholar and Kentucky Board of Education member as well as a professor at Western Kentucky University, has posted a great blog about the goals and limitations of education accountability.

I highly recommend reading Dr. Houchens’ blog.

By the way, at the risk of oversimplification, an education accountability program is somewhat like the speedometer in your car. Without question, a speedometer provides valuable information for the safe operation of the car, but your speedometer won’t make your car go faster or slower. It is only a performance instrument.

Still, it is dangerous to ignore a speedometer and consequences for doing so can be very high.

Thus, the idea that we would want to rip an accountability program out of the education machine is just about as dangerous as the idea of ripping out the speedometer in our vehicles. The key is that we want a speedometer with accurate calibration and easy to read indications. I think our education speedometer needs more work in the accuracy and readability area, but the notion that we could get along without such a performance gauge is not good for our kids.

Mississippi fires testing contractor who made serious mistakes

Kentucky uses same contractor

AP reports that Mississippi has fired NCS Pearson after that testing company made serious grading errors on high school tests that have impacted graduation for as many as 1,000 students.

Some students who actually performed poorly on a high school history test erroneously got high scores while other students who actually did well got inaccurately low scores that might have prevented high school graduation.

The AP article points out that this isn’t the first time Pearson made mistakes on high school exam grading that adversely impacted students. The company also had to pay for a failure of its online testing system in 2015, as well. Pearson reimbursed Mississippi $250,000 for that computer glitch.

Pearson is the prime contractor for Kentucky’s KPREP tests in Grades 3 to 8. So far, problems such as those in Mississippi have not been reported during Kentucky testing.

Ambiguity allows officials to use tech toys, dodge sunshine laws

COG2Bluegrass Institute Center for Open Government Director Amye Bensenhaver and President and CEO Jim Waters joined Kruser and Krew on Lexington’s NewsTalk 590 WVLK-AM  this week for a segment on Bensenhaver’s report.

Sunshine laws, Bensenhaver told the afternoon radio audience, are laws that “guarantee the public’s right of access to open records…and open meetings.” The state enacted the laws in parallel with the federal Freedom of Information ACT in “recognition that … we need those same kinds of guarantee of access.” These laws apply to agencies that receive at least 25 percent of their funding from the government.

Unfortunately, the sunshine laws are getting outdated. These open records and meetings laws were last updated in 1994, with the last substantial changes being passed in 1992.

Twenty-five years later, much work remains to be done.

Under current statute, a public official could dodge open records laws by using Skype because of a lack of clarity in the language. Bensenhaver emphasizes the importance of change to “eliminate those ambiguities that exist in the statute.”

Bensenhaver addressed violations of the sunshine laws by two of the commonwealth’s universities.

University of Louisville’s latest audit demonstrates shocking cover-ups of blatant transgressions. The University of Kentucky has held meetings, “with trustees in less-than-quorum meetings to discuss the budget excluding the public from those meetings, she explained.”

Acting this way keeps the budget discussions off the record, she noted.

These are not isolated incidents, according to Bensenhaver.

“Based on the flaw within the statute, (lack of transparency) has been a perennial problem across the state,” she said. Ignoring transparency means “you get no public discussion of a public issue.”

Bensenhaver warned: “one of the gravest threats to public access … is a decision rendered by former Attorney General Jack Conway on the last day of his  administration.” The decision declared that “those communications between public officials, if they are conducted on private devices, do not constitute public record,” Bensenhaver declared.

“That decision is so wrong,” she declared.

Kentucky has fallen behind in addressing the need for revision, which is why the Bluegrass Institute is so deeply committed to transparency.

Amy Searl is working with The Bluegrass Institute through the Koch Internship Program.

Florida charter schools outperform

A relatively new report from the Washington Examiner says that charter schools in Florida now significantly outperform the traditional schools in that state.

Just of few of the comments include:

  • On state exams, charter students outperformed their peers in traditional schools in 65 out of 77 comparisons;

  • Charter students learned more from one year to the next in 82 of 96 comparisons that focused on learning gains;

  • In 20 out of 22 comparisons, charters had smaller achievement gaps in math, English and social studies between white students and their black and Hispanic peers.

So, Florida has set the bar high as Kentucky gets ready to launch its first charter schools. We need the same sort of outstanding results from our charters, too.

The Bluegrass Institute on Kentucky Tonight—Healthcare

KyresizedBluegrass Institute president and CEO Jim Waters joined a panel on KET’s Kentucky Tonight this week to discuss the Affordable Care Act — often referred to as Obamacare — and it’s proposed replacement, the American Health Care Act (AHCA), which the U.S. House of Representatives recently passed by a thin 217-213 margin. The U.S. Senate has yet to act on the bill.

Waters, who previously called the AHCA “a RINO bill” — repeal in name only — noted the bill is not a full-scale repeal and replacement of Obamacare, but rather a tweaking of a few of its provisions.

He called it “Santa Claus politics,” keeping “a lot of the goodies in there, in terms of the subsidies and the handouts.”

Overall, he warns the bill “keeps many of the things the Obamacare plan had.”

One positive aspect of the bill, he said, is its allowance for states to apply for federal waivers, which will bring at least some of “the management and administration of healthcare dollars … back to the states,” which are better able to determine the needs of their own citizens than Washington’s huge federal bureaucracy.

Waters also took aim once again with Obamacare’s expanded Medicaid approach, which has greatly increased Kentuckians’ dependency on a government program for their health-care coverage.

“Medicaid was never intended to provide healthcare for one out of three Kentuckians,” Waters said, reiterating that the size of Medicaid needs to be shrunk so that the program can be put back on a sustainable path, while implementing more innovative ideas on providing health care for lower-income Americans and Kentuckians.

Others appearing on the program included Lexington Dr. Cameron Schaeffer, a pediatric urologist in Lexington, Dr. Barbara Casper, who teaches at the University of Louisville and Dustin Pugel from the Kentucky Center for Economic Policy.

“I’ve had a problem with Obamacare not only as a doctor but as an American” because it contravenes the American values of individualism, freedom and property rights, Schaeffer said.

One of the ways to mitigate the effects of increased numbers of sick and elderly beneficiaries is to share risk by incorporating younger, healthier people. However, Obamacare has discouraged the potential involvement of younger enrollees “by pooling young people into policies that are mandated to cover problems that old people get, and they can’t afford it,” he said.

The federal mandate for extensive coverage raises prices, making insurance “untenable” for young people, he said.

Watch the full program here.

Amy Searl is working with The Bluegrass Institute through the Koch Internship Program.

JCPS collective-bargaining agreement faces warranted scrutiny

CEI Trey KovacsKentucky’s Department of Education is trying to get a handle on problems with labor union contracts negotiated by the state’s largest school district.

Last month, the agency sent out a request for contractors to review the collective bargaining negotiations and agreements between Jefferson County Public Schools (JCPS) and its union. This is part of a sweeping audit of the school system to find out “whether the contracts were negotiated in good faith, followed best practices and focused only on areas that were permissive subjects of bargaining, among other things,” as reported by the Louisville Courier-Journal.

The planned review has ignited a turf war of sorts. The school board chairman is campaigning for the state Attorney General, Andy Beshear, to conduct the review, instead. But regardless of who does the review, there’s at least one big problem in need of public scrutiny: so-called “association leave.” It may sound benign, but it amounts to a taxpayer-funded subsidy to the Jefferson County Teachers Association.

Association leave grants teachers paid time off from the classroom to perform union business unrelated to their job duties. Instead of educating students, teachers receive a significant amount of paid leave to perform union activities on the taxpayer dime. No one knows how much is money is wasted on association time. Neither the school district nor the union publicize the cost or amount of association leave they receive.

In terms of number of days wasted, the union is supposed to get 275 full days of association leave annually. Apparently, the union has been known to blow past that limit, according to a 2010 analysis of Kentucky District collective bargaining agreements conducted by the Legislative Research Commission Office of Education Accountability. The “OEA discovered that the number of days permitted by JCPS Human Resources staff far exceeded the number of days allowed in the contract.”

Another question is: what exactly are public employees doing while they’re on association leave? The union’s contract states association leave is “for attendance at regional, state or national meetings for the conduct of necessary Association business.” Already, some evidence suggests those limitations don’t garner much respect.

My organization, the Competitive Enterprise Institute, sent public records requests to the school district asking for the activity performed by JCTA members on association leave during fiscal year 2013. Here are some of the activities union members performed instead of serving the students of Jefferson County: attended JCTA board meetings, as well as organizing committee meetings; union staff interviews; National Education Association conferences; and board meetings of Jobs with Justice (a union front group that conducts campaigns against employers).

Clearly, association leave isn’t serving any public purpose or helping to educate children. Tax dollars need to go to the classroom, a sentiment expressed by Andrew Bailey, a JCPS high school teacher and board member during contract negotiations in 2014. Meanwhile, Bailey himself had spent days away from the classroom to perform union activity, according to CEI’s public records request.

Unfortunately, the scope of the problem is bigger than one school district. Numerous city governments and schools districts, like the City of Louisville, needlessly pay public employees to perform union business unrelated to their public duties while paid by the taxpayer.

It’s a good start that the Department of Education is scrutinizing one school district’s union contracts, but now they need to take action to root out the waste in it. Kentucky taxpayers deserve an explanation for how giving away their tax dollars to unions count as a proper use of their money.

Guest columnist Trey Kovacs is a labor policy analyst with the Competitive Enterprise Institute, a free-market public policy organization based in Washington, D.C.